Troutman v. DeKalb Fire E.M.S. Services et al
Filing
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OPINION AND ORDER dismissing action for frivolity pursuant to 28 U.S.C. 1915. Signed by Judge William S. Duffey, Jr on 9/30/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
TIMOTHY TROUTMAN,
Plaintiff,
v.
1:13-cv-1097-WSD
DeKALB FIRE EMS SERVICES, et
al.,
Defendants.
OPINION AND ORDER
Plaintiff Timothy Troutman (“Plaintiff” or “Troutman”), pro se, was granted
leave to proceed in forma pauperis, and this matter is now before the Court for a
frivolity determination pursuant to 28 U.S.C. § 1915.
I.
BACKGROUND
On April 4, 2013, Troutman, a resident of Lithonia, Georgia, filed in this
court a complaint which appears to assert claims under 42 U.S.C. § 1983 against
DeKalb Fire EMS Services (“DeKalb EMS”) and the DeKalb County Police
Department (“DeKalb Police”) based on conduct Troutman alleges was engaged in
by members of those entities. Plaintiff’s complaint is a narrative and does not
identify specific causes of action or claims, but alleges the following facts, taken as
true at this stage of the litigation.
On December 31, 2010, at around 9:45 p.m., Plaintiff was in his home, took
his medication,1 and went to sleep. At some point in the night, Troutman awoke to
find a “white man beating me in my face.” Plaintiff fell back asleep, but awoke
again sometime later to find “four black police officers stomping” him. Plaintiff
passed out again, and when he awoke a third time, he was in police custody, bound
in a cell. When Plaintiff asked what had happened, he was told that the white man
that Plaintiff recalls beating him in the face was an EMS worker. (It is unclear
from Plaintiff’s complaint why an emergency medical responder was in Plaintiff’s
home or how he gained entrance. Plaintiff alleges he had locked the door before
going to sleep.)
On January 7, 2011, after seven days in custody, Plaintiff managed to have a
friend help him post bond. He returned home and claims that someone had broken
into his apartment. Plaintiff had recently purchased a lawn mower, a “weed eater,”
a blower, and “an edger,” to start a landscaping, pest-control, and janitorial
business.2 Plaintiff claims this property was all stolen, along with a television and
1
Plaintiff states he had made arrangements to begin treatment for drug addition
and alcoholism at the DeKalb Addiction Clinic, and that at the time he was taking
50 mg of Remeron and 3 mgs of Respirodol [sic]. The Court takes judicial notice
of the fact that Risperdal is an antipsychotic commonly used to treat schizophrenia.
2
Plaintiff alleges that his plan had been to overcome his addiction to drugs, start a
new business, start a family, and otherwise find direction in his life.
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$624.00 in money orders that Plaintiff had intended to use to pay his rent for the
next two months. Plaintiff asserts that a security guard at Plaintiff’s apartment
complex informed him that an Officer Johnson had already stopped by3 in response
to the break-in, and had stated “now I got his ass.” Confused as to what was going
on or what Officer Johnson had meant, Plaintiff called the police to report the
burglary. The police officer who responded to Plaintiff’s call, Plaintiff asserts,
refused to include, in his report, that someone had broken into his apartment.
(There is some suggestion in Plaintiff’s complaint that Officer Johnson was one of
the officers that “stomped” on Plaintiff during his drug-induced sleep on December
31, 2010, and that the officer filing the report was protecting Officer Johnson.)
Because of the police report, Plaintiff claims he has been unable to be compensated
by his insurance company for the stolen property.
Plaintiff complained in person at the DeKalb County Police Department,
where he met with a Detective Golden, about both the assault and the
incompleteness of the police report about the break-in. Plaintiff also attempted to
file a grievance with the DeKalb County Fire and Rescue Department about his
claimed December 31, 2010, beating. He asserts that when he informed Acting
3
There is no explanation to account for why authorities responded to a “break-in.”
Plaintiff does not claim he requested the investigation.
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Chief Johnson4 that one of the EMS workers had punched him in the face, Johnson
told Plaintiff that he could not prove anything and that Johnson proceeded to make
racially inflammatory statements before telling Plaintiff to leave.
Plaintiff alleges that as a result of the excessive force used by the DeKalb
Police officers and the assault by the DeKalb EMS worker, he suffered substantial
injuries that manifested in November of 2012. These include numbness on the
right side of his body and an inability to use his hand to write. Plaintiff sought
medical attention and was informed he has damage to his spinal column that might
require surgery. (Attached to Plaintiff’s complaint are medical records from
DeKalb Medical dated February 21 and 23, 2013.)
In this action, Plaintiff seeks compensation for his injuries and for any
required treatment, compensation for the property that was stolen from his
apartment, and an apology from the law enforcement and government officials at
the DeKalb Police Department and DeKalb EMS who refused to believe his
version of events.
Because Plaintiff elected to file this case in federal court, and interpreting his
4
Apparently no relation to Officer Johnson.
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pro se pleading liberally,5 the Court concludes Plaintiff is attempting to bring an
action under 42 U.S.C. § 1983 against the government officers Plaintiff claims he
encountered on December 31, 2010, namely, the unidentified DeKalb EMS worker
and the four DeKalb police officers, one of whom Plaintiff appears to assert was
Officer Johnson.
II.
DISCUSSION
A.
Legal Standard
The Court reviews Plaintiff’s filings for frivolity pursuant to 28 U.S.C. §
1915(e)(2)(B). A court must dismiss a case filed in forma pauperis if at any time
the court determines the action is frivolous or malicious or that it fails to state a
claim on which relief can be granted, or seeks monetary relief against a defendant
who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i – iii). “Failure to
state a claim under Section 1915(e)(2)(B)(ii) is governed by the same standard as
dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6).” Wilkerson v.
H&S, Inc., 366 F. App’x 49, 51 (11th Cir. 2010) (citing Mitchell v. Farcass, 112
F.3d 1483, 1490 (11th Cir. 1997)). Under this standard, “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
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“A document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(citations and internal quotation marks omitted).
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on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556). Review for
frivolousness, on the other hand, “‘accords judges not only the authority to dismiss
a claim based on an indisputably meritless legal theory, but also the unusual power
to pierce the veil of the complaint’s factual allegations and dismiss those claims
whose factual contentions are clearly baseless.’” Miller v. Donald, 541 F.3d 1091,
1100 (11th Cir. 2008) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989).
B.
Standard for a Section 1983 Action
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege
that: (1) an act or omission deprived him of a right, privilege, or immunity secured
by the Constitution or a statute of the United States; and (2) the act or omission
was committed by a person acting under color of state law. See Hale v. Tallapoosa
County, 50 F.3d 1579, 1581 (11th Cir. 1995). If a litigant cannot satisfy these
requirements, or fails to provide factual allegations in support of his claim or
claims, then the complaint is subject to dismissal. See Chappell v. Rich, 340 F.3d
1279, 1282-84 (11th Cir. 2003) (affirming the district court’s dismissal of a § 1983
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complaint because the plaintiff’s factual allegations were insufficient to support the
alleged constitutional violation). See also 28 U.S.C. § 1915A(b) (dictating that a
complaint, or any portion thereof, that does not pass the standard in § 1915A
“shall” be dismissed on preliminary review).
C.
Analysis
Plaintiff appears to assert a claim for unreasonable or excessive use of force
by the DeKalb Police officers who arrived at his house in response to an altercation
with a DeKalb EMS worker, and for excessive force by the DeKalb EMS worker.6
He appears also to allege a claim for dereliction of duty against the officer who
failed to file an accurate report about the alleged break-in.
The Court begins with Plaintiff’s claims for an alleged excessive use of
force by DeKalb EMS or Police personnel. Plaintiff appears to allege a claim
based on an alleged assault by a person who, Plaintiff was told, was a DeKalb
EMS employee. Plaintiff does not allege that the assault was committed by an
EMS worker in his capacity as an employee of the DeKalb EMS, or that the assault
was related to emergency services offered by DeKalb County. Section 1983
provides a federal remedy for “the deprivation of any rights, privileges, or
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If indeed that is what occurred. Plaintiff’s complaint does not explain the nature
of events that transpired on December 31, 2010, and it seems unlikely that Plaintiff
is aware of these details, given his medicated and somnolent state at the time.
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immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. It is not a
“font of tort law to be superimposed upon whatever systems may already be
administered by the States.” Paul v. Davis, 424 U.S. 693, 701 (1976). Plaintiff’s
claim is, even generously interpreted, a state-law claim for assault by an individual,
and is not the basis for a claim under Section 1983. Id.
Plaintiff next alleges an excessive force claim against DeKalb Police
officers. “The Fourth Amendment’s freedom from unreasonable searches and
seizures encompasses the plain right to be free from the use of excessive force in
the course of an arrest. The question is whether [the police officer] behaved
reasonably in the light of the circumstances before him.” McCormick v. City of
Fort Lauderdale, 333 F.3d 1234, 1244 (11th Cir. 2003). The force used by the
police officer must be “reasonably proportionate to the need for that force,” which
is measured by (1) the severity of the crime at issue, (2) whether the suspect poses
an immediate threat to the safety of the officers or others, and (3) whether he is
actively resisting arrest or attempting to evade arrest by flight. Id. “[T]he right to
make an arrest or investigatory stop necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it.” Id.
The Court notes that Plaintiff’s alleged injuries did not manifest for almost
two years after his encounter with DeKalb Police. The injuries he alleges are also
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not supported by the medical documents attached to Plaintiff’s complaint. In those
materials, the examining physician stated that Plaintiff’s neurological complaints
“were secondary to patient’s sleeping habits and some neck discomfort and
irritation.” The medical notes also state that Plaintiff was doing well and was
discharged home, and indicate that Plaintiff had “no recent trauma.” Plaintiff’s
injuries do not seem to arise from the incident he describes in his complaint.
Plaintiff’s final claim is based on an alleged dereliction of duty by the
DeKalb Police officer in the filing of a report on the alleged break-in at Plaintiff’s
apartment, specifically by failing to record that a break-in had occurred. This
omission, Plaintiff claims, caused him damage because his insurance company
would not cover the items Plaintiff claims were stolen. An incomplete or
inaccurate police report that affects insurance coverage is not the basis for a claim
that affects a constitutional or other federal right. 42 U.S.C. § 1983. There also
are insufficient facts alleged to support the plausibility of this “dereliction of duty”
claim. Wilkerson, 366 F. App’x at 51.
The Court observes further that the DeKalb County Police Department is not
an entity that can be sued under Section 1983. See Lawal v. Fowler, 196 F. App’x
765, 768 (11th Cir. Aug. 10, 2006) (affirming district court’s dismissal of Section
1983 suit against sheriff’s department because sheriff’s departments and police
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departments are not legal entities subject to suit); Robinson v. Hogansville Police
Dep’t, 159 F. App’x 137, 138 (11th Cir. 2005) (recognizing that a police
department is not a legal entity subject to suit under Section 1983). The DeKalb
County Police Department, therefore, is required to be dismissed from this action.
Because Plaintiff has failed to state viable claims under 42 U.S.C. § 1983,
the Court concludes that this action is required to be dismissed pursuant to 28
U.S.C. § 1915.
III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that this action is DISMISSED.
SO ORDERED this 30th day of September, 2013.
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